California OAH special education order · April 30, 2015
Order of Determination of Insufficiency of Due Process Complaint
OAH Case No. 2015040882 · ALJ Susan Ruff
OAH found Student's complaint insufficient because its claim that a teacher failed to send home or post homework did not show a dispute under the IDEA, and gave 14 days to amend.
Summary
Livermore challenged the sufficiency of a complaint filed by Student's parent. The complaint said Student's teacher did not send home schoolwork or homework and did not post homework online on time. OAH found the complaint insufficient because it was unclear whether Student was claiming a denial of FAPE, for example because the IEP required these things, or was raising some other concern. Student may file an amended complaint within 14 days or the case will be dismissed, and all dates were vacated.
Why it matters
A complaint about classroom practices must tie the problem to special education rights, such as an IEP requirement that is not being followed, or OAH may find it insufficient. Parents without a lawyer can ask OAH for a mediator to help them identify the issues and proposed resolutions before amending.
Key authority cited
- 20 U.S.C. § 1415(b)(7)(A)
- 20 U.S.C. § 1415(c)(2)(D)
- 20 U.S.C. § 1415(c)(2)(E)(i)(II)
- Ed. Code, § 56502
- Ed. Code, § 56505
- 71 Fed.Reg. 46540-46541, 46699
Topics
Full text of the order
Published text of the OAH order. Page headers and numbers from the original PDF have been dropped.
BEFORE THE
OFFICE OF ADMINISTRATIVE HEARINGS
STATE OF CALIFORNIA
In the Matter of:
PARENT ON BEHALF OF STUDENT, OAH Case No. 2015040882 v. ORDER OF DETERMINATION OF
INSUFFICIENCY OF DUE PROCESS
LIVERMORE VALLEY JOINT UNIFIED COMPLAINT
SCHOOL DISTRICT.
On April 17, 2015, Student’s parent on behalf of Student filed a due process hearing request 1 (complaint) naming the Livermore Valley Joint Unified School District.
On April 28, 2015, Livermore filed a notice of insufficiency as to Student’s complaint.
APPLICABLE LAW
The named parties to a due process hearing request have the right to challenge the sufficiency of the complaint. 2 The party filing the complaint is not entitled to a hearing unless the complaint meets the requirements of title 20 United States Code section 1415(b)(7)(A).
A complaint is sufficient if it contains: (1) a description of the nature of the problem of the child relating to the proposed initiation or change concerning the identification, evaluation, or educational placement of the child, or the provision of a free appropriate public education to the child; (2) facts relating to the problem; and (3) a proposed resolution of the problem to the extent known and available to the party at the time. 3 These requirements prevent vague and confusing complaints, and promote fairness by providing the 1 A request for a due process hearing under Education Code section 56502 is the due process complaint notice required under title 20 United States Code section 1415(b)(7)(A).
2 20 U.S.C. § 1415(b) & (c).
3 20 U.S.C. § 1415(b)(7)(A)(ii)(III) & (IV).
named parties with sufficient information to know how to prepare for the hearing and how to participate in resolution sessions and mediation. 4 The complaint provides enough information when it provides “an awareness and understanding of the issues forming the basis of the complaint.” 5 The pleading requirements should be liberally construed in light of the broad remedial purposes of the Individuals with Disabilities Education Act and the relative informality of the due process hearings it authorizes. 6 Whether the complaint is sufficient is a matter within the sound discretion of the Administrative Law Judge. 7
DISCUSSION
Student’s complaint alleges that Student’s teacher does not send home school work or homework and does not post homework online in a timely fashion. It is not clear whether Student is alleging a denial of FAPE because the omitted conduct is required by Student’s individualized education program or if Student’s complaint is based on other concerns.
Student’s complaint is insufficiently pled in that it fails to provide Livermore with the required notice of a dispute which arises under the Individuals with Disabilities Education Act.
MEDIATOR ASSISTANCE FOR NON-REPRESENTED PARENTS: A parent who is not represented by an attorney may request that the OAH provide a mediator to assist the parent in identifying the issues and proposed resolutions that must be included in a 4 See, H.R.Rep. No. 108-77, 1st Sess. (2003), p. 115; Sen. Rep. No. 108-185, 1st Sess. (2003), pp. 34-35.
5 Sen. Rep. No. 108-185, supra, at p. 34.
6 Alexandra R. v. Brookline School Dist. (D.N.H., Sept. 10, 2009, No. 06-cv-0215- JL) 2009 WL 2957991 at p.3 [nonpub. opn.]; Escambia County Board of Educ. v. Benton (S.D.Ala. 2005) 406 F. Supp.2d 1248, 1259-1260; Sammons v. Polk County School Bd.
(M.D. Fla., Oct. 28, 2005, No. 8:04CV2657T24EAJ) 2005 WL 2850076 at p. 3[nonpub.
opn.] ; but cf. M.S.-G. v. Lenape Regional High School Dist. (3d Cir. 2009) 306 Fed.Appx.
772, at p. 3[nonpub. opn.].
7 Assistance to States for the Education of Children With Disabilities and Preschool Grants for Children With Disabilities, 71 Fed.Reg. 46540-46541, 46699 (Aug. 14, 2006).
complaint. 8 Student’s parent is encouraged to contact OAH for assistance if Student’s parent intends to amend Student’s due process hearing request.
ORDER
1. Student’s complaint is insufficiently pled under section title 20 United States
Code section 1415(c)(2)(D).
2. Student shall be permitted to file an amended complaint under title 20 United
States Code section 1415(c)(2)(E)(i)(II). 9
3. The amended complaint shall comply with the requirements of title 20 United
States Code section 1415(b)(7)(A)(ii), and shall be filed not later than 14 days from the date of this order.
4. If Student fails to file a timely amended complaint, the complaint will be
dismissed.
5. All dates previously set in this matter are vacated.
DATE: April 30, 2015
/S/
SUSAN RUFF
Administrative Law Judge Office of Administrative Hearings 8 Ed. Code, § 56505.
9 The filing of an amended complaint will restart the applicable timelines for a due process hearing.